MEMORANDUM OF FMC CORPORATION IN … OF FMC CORPORATION IN SUPPORT OF MOTION TO DENY ENFORCEMENT FOR FAILURE OF DUE PROCESS Client:4335123.1 Ralph H. Palumbo, WSB No. 04751 David M.

MEMORANDUM OF FMC CORPORATION IN SUPPORT OF MOTION TODENY ENFORCEMENT FOR FAILURE OF DUE PROCESS Client:4335123.1

Ralph H. Palumbo, WSB No. 04751David M. Heineck, WSB No. 09285Maureen L. Mitchell, ISB No. 8832SUMMIT LAW GROUP PLLC315 Fifth Avenue South, Suite 1000Seattle, Washington 98104-2682Telephone (206) 676-7000Facsimile (206) [email protected]@[email protected]

Attorneys for FMC Corporation

Lee Radford, ISB No. 5719MOFFATT, THOMAS, BARRETT, ROCK &

FIELDS, CHARTERED

900 Pier View Drive Suite 206Post Office Box 51505Idaho Falls, Idaho 83405Telephone (208) 522-6700Facsimile (208) [email protected]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

FMC CORPORATION,

Plaintiff,

vs.

SHOSHONE-BANNOCK TRIBES,

Defendant.

Case No. 4:14-cv-489-CWD

MEMORANDUM OF FMCCORPORATION IN SUPPORT OFMOTION TO DENY ENFORCEMENTFOR FAILURE OF DUE PROCESS

Case 4:14-cv-00489-BLW Document 67-2 Filed 01/13/17 Page 1 of 44

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TABLE OF CONTENTS

Page

I. THE QUESTION OF DUE PROCESS UNDER WILSON V. MARCHINGTONMUST BE ANSWERED ON A DE NOVO BASIS. ........................................................2

A. The Ninth Circuit Case of Wilson v. Marchington Requires the DistrictCourt to Determine Whether the FMC Was Afforded Due Process.................2

B. Review of a Tribal Court Judgment for Due Process Is Pursued Under aDe Novo Standard of Review. ...............................................................................3

C. The Only Question Presented Is Whether the Judgment In its CurrentForm is Enforceable Under the Standards Established in Wilson v.Marchington............................................................................................................4

II. THERE IS NOTHING IN THE TRIBAL COURT SYSTEM THATPROTECTS ANY DUE PROCESS RIGHTS OF A NON-MEMBER OF THETRIBES...............................................................................................................................4

A. The Judgment Suffers From All of the Concerns Regarding TribalCourts Expressed by the United States Supreme Court. ...................................4

B. It is Not Possible for a Nonmember to Obtain Due Process in a System inWhich its Opponent Chooses the Court, and in Which the NonmemberHas No Protections Against Governmental Overreach......................................7

C. Bird and Burrell Demonstrate Why the Tribal Court Judgments CannotBe Enforced. ...........................................................................................................8

III. WITH NO REASON TO PROVIDE DUE PROCESS, THE TRIBES IN THISCASE FAILED TO PROVIDE DUE PROCESS..........................................................10

A. The Land Use Policy Commission and Business Council Ruled forThemselves............................................................................................................11

B. When the Tribal Court Ruled for FMC, the Judge Was Removed FromFurther Proceedings. ...........................................................................................11

C. The First Panel of the Tribal Court of Appeals Explicitly Pronounced itsIntention to “Protect the Tribe.” ........................................................................13

D. The Decision for the Second Panel of Tribal Appellate Court Had BeenReached Long Before the Trial Was Held.........................................................16

E. Conclusion: No Due Process Will Be Provided In a System Is NotDesigned to Require Due Process. ......................................................................18


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IV. THE DISTRICT COURT ERRONEOUSLY BARRED DISCOVERYREGARDING WHETHER THE TRIBAL COURT SYSTEM PROVIDED DUEPROCESS TO A NONMEMBER OPPOSING THE TRIBAL GOVERNMENT....19

A. The District Court Erred by Failing to Apply the Wilson v. MarchingtonPrinciples to this Question. .................................................................................20

B. The Legal Rule Followed by the District Court Has No PrecedentialSupport in Tribal Law Cases. .............................................................................21

C. The District Court’s Rule Violates Ninth and Tenth Circuit Precedent. .......22

V. THE JUDGMENT SHOULD NOT BE ENFORCED BASED ON THEDISCRETIONARY FACTORS PROVIDED IN WILSON V. MARCHINGTON. ....24

VI. THE PENAL JUDGMENT RULE BARS ENFORCEMENT OF THE TRIBALCOURT JUDGMENT. ....................................................................................................25

A. The Penal Law Rule Bars the Enforcement of Judgments for theCollection of Fines or Penalties...........................................................................25

B. The Judgment in this Case is a Penal Judgment that Cannot Be EnforcedUnder the Penal Law Rule. .................................................................................28

C. The Penal Judgment Rule Has Been Adopted in the Uniform Law................29

D. The Penal Law Rule Also Prohibits Enforcement of Judgments Protectedby the Full Faith and Credit Clause. ..................................................................30

VII. ARTICLE III OF THE UNITED STATES CONSTITUTION BARSENFORCEMENT OF THE TRIBAL COURT JUDGMENT AGAINST FMC. ......31

VIII. CONCLUSION ................................................................................................................35


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TABLE OF CASES AND AUTHORITIES

Pages

Cases

Antelope,23 U.S. (10 Wheat.) 66, 6 L.Ed. 268 (1825)................................................................................. 26

AT&T Corp. v. Coeur d’Alene Tribe,295 F.3d 899 (9th Cir. 2002) ...................................................................................... 3, 4, 8, 22, 23

Banco Nacional de Cuba v. Sabbatino,376 U.S. 398 (1964)................................................................................................................ 26, 28

Bank Melli Iran v. Pahlavi,58 F.3d 1406 (9th Cir. 1995) .............................................................................................. 3, 19, 20

Barton v. State,104 Idaho 338, 659 P.2d 92 (1983)............................................................................................... 16

Big Horn Cnty. Elec. Coop. v. Adams,219 F.3d 944 (9th Cir. 2000) .......................................................................................................... 9

Bird v. Glacier Elec. Co-op.,255 F.3d 1136 (9th Cir. 2001) .................................................................................. 2, 3, 4, 8, 9, 23

Burlington N. RR. Co. v. Red Wolf,196 F.3d 1059 (9th Cir. 2000) ........................................................................................................ 9

Burrell v. Armijo,456 F.3d 1159 (10th Cir. 2006) ...................................................................................... 3, 9, 17, 22

City of Oakland v. Desert Outdoor Adver., Inc.,267 P.3d 48 (Nev. 2011) ......................................................................................................... 26, 30

Cnty. of Lewis v. Allen,163 F.3d 509 (9th Cir. 1998) .......................................................................................................... 9

Commodity Futures Trading Comm’n v. Schor,478 U.S. 833 (1986)................................................................................................................ 33, 34

Crowell v. Benson,285 U.S. 22, 52 S. Ct. 285 (1932)..................................................................................... 23, 33, 34

Dollar Gen. Corp. v. Miss. Band of Choctaw Indians,2015 WL 9919326 (Dec. 7, 2015) ................................................................................................ 31


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Duro v. Reina,495 U.S. 676 (1990).................................................................................................... 1, 6, 7, 18, 29

Farmers & Merchants Trust Co. v. Madeira,261 Cal. App. 2d 503, 68 Cal. Rptr. 184 (Ct. App. 1968) ............................................................ 31

Granfinanceria S.A. v. Nordberg,492 U.S. 33, 109 S. Ct. 2782 (1989)............................................................................................. 34

Hilao v. Estate of Ferdinand Marcos,103 F.3d 767 (9th Cir. 1996) .......................................................................................................... 3

Hilton v. Guyot,159 U.S. 113 (1895)...................................................................................................................... 20

Huntington v. Attrill,146 U.S. 657 (1892).......................................................................................................... 26, 27, 30

Iowa Mut. Ins. Co. v. LaPlante,480 U.S. 9 (1987).......................................................................................................................... 21

MGM Desert Inn, Inc. v. Holz,411 S.E.2d 399 (N.C. Ct. App. 1991) ........................................................................................... 31

Milwaukee Cnty. v. M.E. White Co.,296 U.S. 268 (1935)................................................................................................................ 26, 30

Montana v. United States,450 U.S. 544 (1981)...................................................................................................................... 35

Murray’s Lessee v. Hoboken Land & Improvement Co.,18 How. 272 (1856) ...................................................................................................................... 33

N. Pipeline Constr. Co. v. Marathon Pipe Line Co.,458 U.S. 50 (1982).................................................................................................................. 33, 34

Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians,471 U.S. 845 (1985)...................................................................................................................... 21

Nelson v. George,399 U.S. 224 (1970)................................................................................................................ 26, 30

Nevada v. Hicks,533 U.S. 353 (2001)...................................................................................................... 1, 5, 6, 7, 14

Ng Fung Ho v. White,259 U.S. 276, 42 S.Ct. 492 (1922)................................................................................................ 23


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Oklahoma ex rel. West v. Gulf, Colo. & Santa Fe Ry. Co.,220 U.S. 290 (1911)...................................................................................................................... 26

Oliphant v. Suquamish Tribe,435 U.S. 191 (1978).................................................................................................................. 5, 29

Pasquantino v. United States,544 U.S. 349 (2005)...................................................................................................................... 26

People v. Laino,32 Cal. 4th 878, 87 P.3d 27 (Cal. 2004) ....................................................................................... 30

Philadelphia v. Austin,429 A.2d 568 (N.J. 1981).............................................................................................................. 30

Plains Commerce Bank v. Long Family Land & Cattle Co.,554 U.S. 316 (2008).............................................................................................................. 5, 6, 29

Russo v. Dear,105 S.W.3d 43 (Tex. App. 2003).................................................................................................. 31

S.H. v. Adm'r of Golden Valley Health Ctr.,386 N.W.2d 805 (Minn. Ct. App. 1986)....................................................................................... 31

Santa Clara Pueblo v. Martinez,436 U.S. 49 (1978).......................................................................................................................... 6

Schaefer v. H. B. Green Transp. Line,232 F.2d 415 (7th Cir. 1956) ........................................................................................................ 30

Smith v. Salish Kootenai Coll.,434 F.3d 1127 (9th Cir. 2006) ........................................................................................................ 9

South Dakota v. Bourland,508 U.S. 679 (1993)...................................................................................................................... 14

Stern v. Marshall,564 U.S. 462 (2011).................................................................................................... 31, 32, 33, 34

Strate v. A-1 Contractors,520 U.S. 438 (1997)................................................................................................................ 14, 21

Talton v. Mayes,163 U.S. 376 (1896)........................................................................................................................ 5

Thomas v. Union Carbide Agr. Prods. Co.,473 U.S. 568 (1985).......................................................................................................... 32, 33, 34


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United States v. Federative Republic of Brazil,748 F.3d 86 (2d Cir. 2014)............................................................................................................ 26

United States v. FMC Corp.,229 F.3d 1161 (9th Cir. 2000) ...................................................................................................... 24

United States v. FMC Corp.,531 F.3d 813 (9th Cir. 2008) ........................................................................................................ 25

United States v. Lara,541 U.S. 193 (2004).................................................................................................................... 5, 6

United States v. Wheeler,435 U.S. 313 (1978)...................................................................................................................... 32

Water Wheel Camp Rec. Area v. Larance,642 F.3d 802 (9th Cir. 2011) .......................................................................................................... 9

Wilson v. Marchington,127 F.3d 805 (9th Cir. 1997) .......................................................... 2, 3, 8, 9, 17, 19, 20, 24, 27, 30

Wisconsin v. Pelican Ins. Co.,127 U.S. 265 (1888)................................................................................................................ 26, 28

Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme,433 F.3d 1199 (9th Cir. 2006) .......................................................................................... 26, 27, 28

Statutes

BUSINESS COUNCIL ORDINANCE § 4.A.1.b.................................................................................... 11

BUSINESS COUNCIL ORDINANCE § 4.A.6....................................................................................... 11

IDAHO CODE § 10-1401(1) (2006) ................................................................................................ 29

IDAHO CODE § 10-1403(2) (2016) ................................................................................................ 29

LAW AND ORDER CODE ch. I §3.2 ........................................................................................... 11, 12

LAW AND ORDER CODE, ch. I, § 3.7 .............................................................................................. 12

LAW AND ORDER CODE, ch. I, § 3.8 .............................................................................................. 12

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 483 (1987)26,27, 30


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Other Authorities

NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, UNIFORM FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT (JULY 21, 2005)....................................... 29, 30

NINTH CIRCUIT STANDARDS OF REVIEW (http://www.ca9.uscourts.gov)........................................ 4

SHOBAN NEWS, March 19, 2015..................................................................................................... 7

TRIBAL CONST. art. III..................................................................................................................... 8

TRIBAL CONST. art. VI .................................................................................................................... 8

U.S. CONST. art. III § 2 ................................................................................................................. 32

U.S. CONST. art. III, § 1 ................................................................................................................ 32

U.S. CONST. art. IV § 1 ................................................................................................................. 30

U.S. CONST. art. VI ....................................................................................................................... 33


MEMORANDUM OF FMC CORPORATION IN SUPPORT OF MOTION TODENY ENFORCEMENT FOR FAILURE OF DUE PROCESS - 1 Client:4335123.1

This case asks whether the Shoshone-Bannock Tribal Court of Appeals (the “Appellate

Court”) provided due process to FMC Corporation (“FMC”), a United States citizen and

nonmember of the Shoshone-Bannock Tribes (“Tribes”), in Tribal proceedings that resulted in an

Appellate Court judgment requiring FMC to pay the Tribes’ Fort Hall Business Council $1.5

million per year from 2015 into eternity, plus the amount of $20,519,381.41. May 16, 2014

Judg. (“Judgment”), 008555; SOF 117.

This question must be answered in relation to a system in which: (a) FMC’s opponent

maintains ultimate control over constitutionally “subordinate” courts and judges; (b) FMC did

not have the protection of the Bill of Rights or any other constitutional limitations on

government; (c) the Tribal government enjoys complete immunity from liability arising from any

abuse of these unlimited powers: (d) FMC could have no part in tribal government, and could not

“give[] the consent of the governed that provides a basis for power within our constitutional

system,” Duro v. Reina, 495 U.S. 676, 694 (1990): and (e) FMC has no means of seeking redress

through Article III courts in which both tribal members and nonmembers are citizen participants.

Nevada v. Hicks, 533 U.S. 353, 385 (2001) (Souter, J. concurring).

With no system to provide due process, it can be no surprise that FMC was denied due

process: (1) the applicable laws were unknowable and changed at the whim of the Tribe; (2) the

Tribes dumped one Judge when he decided against the Tribes; (3) the Tribes changed procedures

mid-stream in order to avoid the judge they fired; (4) even after other judges publicly admitted

that they were advocating for the Tribes, their decisions still determined the outcome; (5) after

key evidence was discovered to have been withheld by the Tribes’ counsel, the tribal courts still

ignored it; and (6) the tribal courts selectively relied on state law when it helped the Tribes, and

ignored state law when it did not help the Tribes.



There was never a realistic possibility of a fair proceeding for FMC in courts controlled

by FMC’s opponent. To pretend otherwise is to completely abandon our nation’s core values of

limited government of the people. Comity does not allow recognition of this Judgment.

I. THE QUESTION OF DUE PROCESS UNDER WILSON V. MARCHINGTONMUST BE ANSWERED ON A DE NOVO BASIS.

A district court does not have “discretion to give comity” to a tribal court judgment “if

the tribal court proceedings deprived” a non-member of due process. Bird v. Glacier Elec. Co-

op., 255 F.3d 1136, 1152 (9th Cir. 2001). A district court has no discretion to recognize a

judgment that is not based on due process, which will be reviewed de novo. Id. at 1140-41.

A. The Ninth Circuit Case of Wilson v. Marchington Requires the District Courtto Determine Whether the FMC Was Afforded Due Process.

The case of Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997), established the legal

criteria for recognition of tribal judgments:

In synthesizing the traditional elements of comity with the special requirements ofIndian law, we conclude that, as a general principle, federal courts shouldrecognize and enforce tribal judgments. However, federal courts must neitherrecognize nor enforce tribal judgments if: (1) the tribal court did not have bothpersonal and subject matter jurisdiction; or (2) the defendant was not affordeddue process of law.

In addition, a federal court may, in its discretion, decline to recognize and enforcea tribal judgment on equitable grounds, including the following circumstances:(1) the judgment was obtained by fraud; (2) the judgment conflicts with anotherfinal judgment that is entitled to recognition; (3) the judgment is inconsistentwith the parties' contractual choice of forum; or (4) recognition of the judgment,or the cause of action upon which it is based, is against the public policy of theUnited States or the forum state in which recognition of the judgment is sought.

Wilson, 127 F.3d at 810 (emphasis added). Under Wilson, tribal court judgments are not

enforced if the defendant was not provided due process of law. 127 F.3d at 810, 811. A claim of

lack of due process is presented as a defense to enforcement of a foreign judgment after the party

seeking enforcement of the judgment makes a prima facie showing that there was subject matter



jurisdiction, personal jurisdiction, and that there were regular proceedings conducted according

to a normal course of civilized jurisprudence. AT&T Corp. v. Coeur d’Alene Tribe, 295 F.3d

899, 905 (9th Cir. 2002); Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1409 (9th Cir. 1995). The

Ninth Circuit explained:

Due process, as that term is employed in comity, encompasses most of the Hiltonfactors, namely that there has been opportunity for a full and fair trial before animpartial tribunal that conducts the trial upon regular proceedings after properservice or voluntary appearance of the defendant, and that there is no showing ofprejudice in the tribal court or in the system of governing laws. Further, as theRestatement (Third) noted, evidence “that the judiciary was dominated by thepolitical branches of government or by an opposing litigant, or that a party wasunable to obtain counsel, to secure documents or attendance of witnesses, or tohave access to appeal or review, would support a conclusion that the legal systemwas one whose judgments are not entitled to recognition.” Restatement (Third)Section 482 cmt. b.

Wilson, 127 F.3d at 811 (emphasis added).

B. Review of a Tribal Court Judgment for Due Process Is Pursued Under a DeNovo Standard of Review.

The issue of whether the Tribes provided FMC due process must be considered with a de

novo standard of review. In Bird, the Ninth Circuit explained that “the district court here had no

discretion to recognize” a tribal court judgment not based on due process, and that the question

of due process must be reviewed de novo1. Bird, 255 F.3d at 1140-41; see Burrell v. Armijo, 456

F.3d 1159, 1167 (10th Cir. 2006); Hilao v. Estate of Ferdinand Marcos, 103 F.3d 767 (9th Cir.

1996). A de novo standard of review applies to the question of whether another court provided

due process, because presumably that other court would always find that it provided due process.

Federal courts address all types of claims of due process violations with a de novo standard of

1 The Ninth Circuit published this standard in its online publication of its Standards of Review:“32. Tribal Courts. . . . Whether a denial of due process precludes a district court’s grant ofcomity to the trial court’s judgment presents questions of law reviewed de novo. See Bird v.Glacier Elect. Coop., Inc., 255 F.3d 1136, 1140-41 (9th Cir. 2001).” Ninth Circuit Standards ofReview, “Tribal Courts” (http://www.ca9.uscourts.gov).



review. Ninth Circuit Standards of Review (http://www.ca9.uscourts.gov). De novo review

means that the reviewing court views the case from the same position as the reviewed court. Id.

With de novo review, the reviewing court must consider the matter anew, as if there had

previously been no decision rendered. Id. Review under a de novo standard is “independent,”

or “plenary.” “When de novo review is compelled, no form of appellate deference is

acceptable.” Id.

C. The Only Question Presented Is Whether the Judgment In its Current Formis Enforceable Under the Standards Established in Wilson v. Marchington.

In determining whether to recognize a tribal court judgment, the federal district court is

not acting as an appellate court. The federal district court has no authority to remand the case

back to the tribal court, or to correct errors or revise the judgment in any way:

Had this case been tried in federal court, our ruling might permit consideration ofthe possibility of a remand for a new trial. But because the case was tried in tribalcourt, we hold only that the tribal court judgment is not entitled to comity andmay not be recognized or enforced in federal court.

Bird, 255 F.3d at 1153 n. 21; see AT&T Corp. v. Coeur d’Alene Tribe, 295 F.3d 899 (9th Cir.

2002). The question of whether to enforce the judgment turns on whether due process was

provided. If the answer is negative, the district court must deny enforcement of the tribal court

judgment.

II. THERE IS NOTHING IN THE TRIBAL COURT SYSTEM THAT PROTECTSANY DUE PROCESS RIGHTS OF A NON-MEMBER OF THE TRIBES

A. The Judgment Suffers From All of the Concerns Regarding Tribal CourtsExpressed by the United States Supreme Court.

The Tribal courts here are subordinate to the Business Council, and were asked to decide

if that same Business Council should prevail over FMC. That can lead to only one result. The

Supreme Court has pointed out the problems inherent in subjecting nonmembers to tribal courts:



Tribal sovereignty, it should be remembered, is “a sovereignty outside the basicstructure of the Constitution.” The Bill of Rights does not apply to Indiantribes. Indian courts “differ from traditional American courts in a number ofsignificant respects.” And non-members have no part in tribal government —they have no say in the laws and regulations that govern tribal territory.

Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 337 (2008) (emphasis

added); citing United States v. Lara, 541 U.S. 193, 212 (2004) (Kennedy, J., concurring in

judgment); Talton v. Mayes, 163 U.S. 376, 382-385 (1896); Nevada v. Hicks, 533 U.S. 353

(2001) (Souter, J. concurring)).

The ability of nonmembers to know where tribal jurisdiction begins and ends, itshould be stressed, is a matter of real, practical consequence given “[t]he specialnature of [Indian] tribunals,” Duro v. Reina, 495 U.S. 676, 693 (1990), whichdiffer from traditional American courts in a number of significant respects. Tostart with the most obvious one, it has been understood for more than a centurythat the Bill of Rights and the Fourteenth Amendment do not of their own forceapply to Indian tribes. See Talton v. Mayes, 163 U.S. 376, 382-385 (1896); F.Cohen, Handbook of Federal Indian Law 664-665 (1982 ed.) (hereinafter Cohen)(“Indian tribes are not states of the union within the meaning of the Constitution,and the constitutional limitations on states do not apply to tribes”).

Hicks, 533 U.S. at 383-84 (Souter, J. concurring) (emphasis added). Justice Souter explained:

[A] presumption against tribal-court civil jurisdiction squares with one of theprincipal policy considerations underlying Oliphant, namely, an overridingconcern that citizens who are not tribal members be “protected . . . fromunwarranted intrusions on their personal liberty,”

Hicks, 533 U.S. at 384 (emphasis added), citing Oliphant v. Suquamish Tribe, 435 U.S. 191, 210

(1978). Justice Souter also listed other concerns with non-tribal members being subjected to

tribal courts:

Tribal courts also differ from other American courts (and often from one another)in their structure, in the substantive law they apply, and in the independence oftheir judges. Although some modern tribal courts “mirror American courts” and“are guided by written codes, rules, procedures, and guidelines,” tribal law is stillfrequently unwritten, being based instead “on the values, mores, and norms of atribe and expressed in its customs, traditions, and practices,” and is often “handeddown orally or by example from one generation to another.” . . . . The resultinglaw applicable in tribal courts is a complex “mix of tribal codes and federal,



state, and traditional law,” . . . which would be unusually difficult for anoutsider to sort out.

Hicks, 533 U.S. at 384-85 (Souter, J. concurring) (emphasis added). Finally, Justice Souter

expressed concern that tribal courts are often subordinate to the political branch:

The result, of course, is a risk of substantial disuniformity in the interpretation ofstate and federal law, a risk underscored by the fact that “[t]ribal courts are often‘subordinate to the political branches of tribal governments,’” Duro, supra, at693 (quoting Cohen 334-335).

Hicks, 533 U.S. at 385 (emphasis added).

In sum, the United States Supreme Court has expressed the following concerns:

• Outside the Structure of the Constitution. “Tribal sovereignty, it should beremembered, is “a sovereignty outside the basic structure of the Constitution.” PlainsCommerce, 554 U.S. at 337; quoting Lara, 541 U.S. at 212 (Kennedy, J., concurring).The “tribes are left with broad freedom not enjoyed by any other governmentalauthority in this country.” Duro, 495 U.S. at 676.

• Lack of Consent of Governed. “This is all the more reason to reject an extension oftribal authority over those who have not given the consent of the governed thatprovides a basis for power within our constitutional system.” Duro, 495 U.S. at 694;see Decl. Ind. ¶ 2 (“It is a fundamental belief of our republic that Governments“deriv[e] their just Powers from the Consent of the Governed.”). “The special natureof the tribunals at issue makes a focus on consent and the protections of citizenshipmost appropriate.” Id. at 693. “And non-members have no part in tribal government– they have no say in the laws and regulations that govern tribal territory.” PlainsCommerce, 554 U.S. at 337.

• The Bill of Rights Does Not Apply. “The Bill of Rights does not apply to Indiantribes.” Plains Commerce, 554 U.S. at 337; Duro, 495 U.S. at 676; Hicks, 533 U.S. at383 (Souter, J., concurring).

• Indian Civil Rights Act Provides No Protection. The Indian Civil Rights Act of1968 provides no protection for a nonmember because there is no federal cause ofaction against a tribe for violation of its provisions. Duro, 495 U.S. at 693; Hicks,533 U.S. at 384 (Souter, J., concurring); Santa Clara Pueblo v. Martinez, 436 U.S.49, 56 and n.7 (1978).

• Tribal Courts Are Often Subordinate to Political Branches. “Tribal courts areoften ‘subordinate to the political branches of tribal governments,’ . . . .” Duro, 495U.S. at 693; Hicks, 533 U.S. at 385 (Souter, J., concurring). Tribal courts differ fromother American courts “in the independence of their judges.” Hicks, 533 U.S. at 384(Souter, J., concurring); see Decl. Ind. ¶ 12 (The Declaration of Independence



asserted that it is not acceptable for a sovereign to make “Judges dependent on hisWill alone, for the Tenure of their Offices, and the Amount and Payment of theirSalaries.”).

• Tribal Laws Are Often Unknowable. “The resulting law applicable in tribal courtsis a complex ‘mix of tribal codes and federal, state, and traditional law,’ which wouldbe unusually difficult for an outsider to sort out.” Duro, 495 U.S. at 384-385 (Souter,J., concurring).

• There Is No Effective Review of Tribal Court Actions. “It is generally acceptedthat there is no effective review mechanism in place to police tribal courts’ decisionson matters of non-tribal law, since tribal court judgments based on state or federal lawcan be neither removed nor appealed to state or federal courts.” Hicks, 533 U.S. at385 (Souter, J., concurring). “[T]he general federal–question removal statute refersonly to removal from state court.” Hicks, 533 U.S. at 368 (Scalia, J., majority).

B. It is Not Possible for a Nonmember to Obtain Due Process in a System inWhich its Opponent Chooses the Court, and in Which the Nonmember HasNo Protections Against Governmental Overreach.

The Business Council will receive and spend any funds obtained through the courts.

SOF 70. Under the Tribes’ Constitution, the Business Council is the only branch of government

and controls all functions of the Tribes, including the Tribal courts. SOF 71. FMC is not alone

in asserting this truth. In an open letter published in the local news, a Tribal Court Judge not

involved in this matter wrote regarding these realities:

That was a hard decision to make because after being removed as a Judge bythe Council the day before Thanksgiving, and finally reinstated January 16,2015, with no back pay, having lost all that pay, I am not in a financial position toresign my position at this time.

[Indian Judges] are considered appointed officials, however, the reality is we aresecond class employees. . . . We [tribal court judges] serve at the pleasure ofthe Fort Hall Business Council and can be removed at their will. That is thereality of the job.

March 19, 2015 ShoBan News (emphasis added); Apr. 22, 2015 Aff., Doc. 38., Ex. 12, Doc. 38-

12; Apr. 8, 2015 FMC Br., Doc. 36, at 3.

The Tribes’ Constitution establishes that “[t]he governing body of the Shoshone-Bannock

Tribes of the Fort Hall Reservation shall be a council known as the Fort Hall business council.”



SOF 71; TRIBAL CONST. art. III § 1. The Business Council has ultimate control over all parts of

Tribal operations, including over the Tribal courts, which are politically subordinate entities to

the Business Council. Every act of the Tribes, including judicial acts, is subject to the

supervision and direction of the Business Council. SOF 73; TRIBAL CONST. art. III § 1; art. VI

§ 1(k); art. VI § 1(s). Outside of the Business Council, there are no other governing bodies

provided for in the Tribes’ Constitution. There is no separation of powers. There is no

independent judicial system, or independent legislative body, or independent executive. SOF 71.

The Business Council has the sole power to establish and supervise Tribal courts.

SOF 72; TRIBAL CONST. art. VI § 1(k). The Tribal Constitution allows the Business Council to

delegate some of its powers to “subordinate boards” but only with the express reservation for the

Business Council of “the right to review any action taken by virtue of such delegated power,”

giving the Business Council the right to review any action taken by the tribal courts. SOF 73;

TRIBAL CONST. art. VI § 1(s). The Tribal courts cannot be seen as an impartial tribunal

conducting a fair trial, nor can an absence of prejudice be proven, nor can it be proven that the

tribal courts were free from domination by the Business Council as required by Wilson. 127 F.3d

at 811; SOF 78.

C. Bird and Burrell Demonstrate Why the Tribal Court Judgments Cannot BeEnforced.

Since the Ninth Circuit established the comity analysis for tribal court judgments in 1997

in Wilson, supra there have been only a limited number of cases that reviewed a completed tribal

court judgment. But in nearly every such case, the Ninth Circuit refused to enforce the tribal

court judgment, usually because the tribal courts overreached on tribal jurisdiction.2 In only two

2 AT&T Corp. v. Coeur d’Alene Tribe, 295 F.3d 899 (9th Cir. 2002); Bird v. Glacier Elec. Co-op., 255 F.3d 1136 (9th Cir. 2001); Big Horn County Electric Coop. v. Adams, 219 F.3d 944 (9th



cases was the tribal decision followed, involving significant voluntary participation by the

nonmember in the tribal process, which is not present here.3

In the only case where due process under Wilson was analyzed as a defense to a

completed tribal judgment, the Ninth Circuit refused to enforce the judgment. In Bird, supra, the

Ninth Circuit denied enforcement of a verdict from a jury composed entirely of members of the

Blackfeet Tribe, where the attorney for Bird made an improper closing argument. Relying on

Wilson, the Ninth Circuit concluded that the tribal court proceedings “offended fundamental

fairness and violated due process owed the Co-op,” and stated that “the district court did not

have discretion to give comity to the tribal court judgment” where “the tribal court proceedings

deprived the Co-op of due process.” Bird, 255 F.3d at 1152.

In Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006), the Tenth Circuit refused to enforce

a tribal court judgment due in part to the “close relationship” between the tribal court and the

tribal parties to the case. A nonmember had entered into a lease to farm tribally owned land, and

a dispute had developed between the nonmember and the tribal government regarding this lease.

The tribal government was the party opposing the nonmember, that government had a significant

economic interest in the dispute, and that government controlled the tribal court. Given these

facts, the Tenth Circuit refused to enforce the tribal court’s judgment:

As an initial matter, we note that the close relationship between the tribal court,the Pueblo, and the individual tribal officials causes us to carefully scrutinize thetribal court proceedings in this case.

Burrell, 456 F.3d at 1173 (emphasis added).

Cir. 2000); Burlington N. RR. Co. v. Red Wolf, 196 F.3d 1059 (9th Cir. 2000); Cnty. of Lewis v.Allen, 163 F.3d 509 (9th Cir. 1998); Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997).3 Smith v. Salish Kootenai College, 434 F.3d 1127 (9th Cir. 2006) (claim by student at tribalcollege); Water Wheel Camp Recreational Area v. Larance, 642 F.3d 802 (9th Cir. 2011) (longterm lease of tribal land).



III. WITH NO REASON TO PROVIDE DUE PROCESS, THE TRIBES IN THISCASE FAILED TO PROVIDE DUE PROCESS

There is no institutional system in place to provide nonmembers due process. While the

Tribes decorated the proceedings with a façade of due process, without any institutional system

for due process, there was no real possibility that the system could provide due process. At the

inception of the Tribal Court case, the Business Council made an attempt to give an appearance

of fairness to the Tribal Court proceedings by appointing an outside attorney to act as the Tribal

Court judge. SOF 80. But that approach backfired when that outside judge ruled against the

Business Council, explaining that the Tribes did not have any law in place that would require

FMC to pay the $1.5 million permit fee in perpetuity. SOF 83. In response to this, the Business

Council appointed an Appellate Court panel with a majority who were advocates for tribes. That

panel was willing to ignore that fundamental problem and overturned the Tribal Court decision.

But after the majority of the panel made the mistake of publicly explaining their tribal advocacy

in a publicly recorded meeting, the Business Council replaced that first panel with a second

panel. SOF 94-102, 105, 113. The second panel revised the procedures midstream so as to

avoid a remand to the Tribal Court judge who had ruled against the Tribes. SOF 111. And when

the second panel learned that the Tribes’ counsel had withheld the authoritative document that

showed the Tribal Court judge was correct, the panel ignored the evidence and blamed FMC for

not presenting the withheld document earlier. May 28, 2013 Order, 006626-27. The court also

selectively chose state law when it supported their advocacy, and ignored state law when it

contradicted their advocacy. Feb. 5, 2013 Findings 006510, 006525, 006517-19; Jul. 15, 2010

FMC Br. 004873, 004934. In short, the Tribal courts acted exactly as they would be expected to

act in a system in which there is every incentive to favor one party over the other.



A. The Land Use Policy Commission and Business Council Ruled forThemselves.

The first stage of the proceeding was before the Tribes’ Land Use Policy Commission

(“LUPC”). Since the LUPC is a party in the case, and a subordinate agency to the Business

Council, and would have a hand in disposing of any revenues obtained from a judgment against

FMC, it was not surprising that the LUPC quickly ordered FMC to pay tens of millions of dollars

in permit fees. SOF 64-69; Apr. 25, 2006 Findings, 000349, 000353.4 FMC then appealed the

LUPC’s decision to the Business Council. SOF 74. The Business Council is the entity that

would receive and dispose of any funds paid by FMC. SOF 70. The Business Council

predictably found in its own favor, affirming the LUPC ruling that FMC must pay it the $1.5

million annual permit fees in 2001 and every year thereafter in perpetuity. SOF 75-76; Jul. 21,

2006 Dec. 002787; Jun. 14, 2007 Dec. 003021.

B. When the Tribal Court Ruled for FMC, the Judge Was Removed FromFurther Proceedings.

The only avenue for appeal of the decisions of the Business Council is to the Shoshone-

Bannock Tribal Court, another body subordinate to the Business Council. The Business Council

has sole power to establish the Tribal courts. TRIBAL CONST. ART. VI, § 1(k). The Business

Council can rescind and restructure the Tribal courts by ordinance at any time. LAW AND ORDER

CODE, ch. I § 3.2. The Business Council sets the compensation of the Tribal judges, Law and

4 The LUPC is not provided for in the Tribal Constitution, and has no constitutional powersseparate from the Business Council. Under the Ordinance, the Business Council specifically“reserves the right to review any action taken by virtue of such delegated power.” SOF 26;Ordinance § 4.A.1.b. This reservation of the right to review all actions of the LUPC is requiredby Article VI, § 1(s) of the Tribal Constitution. SOF 73. In addition, the budget of the LUPC iscontrolled by the Business Council, Ordinance, § 4.A.1.b.; and the Ordinance gives the BusinessCouncil a broad power to remove any member of the LUPC if the Council feels that the member“has failed to fulfill his or her duties.” Ordinance, § 4.A.6. SOF 26. Also, the Business Councilhas the ultimate power to disband the LUPC at any time.



Order Code, Ch. I, § 3.7, and controls the budget of the Tribal courts. The Tribal courts have no

independent means of funding their efforts. The Business Council also has the power to suspend

or remove Tribal court judges. LAW AND ORDER CODE, CH. I, §§ 3.8; 3.2.

Somehow, the Business Council or its subordinates chose to have FMC’s appeal heard by

David Maguire, an attorney licensed by the State of Idaho. SOF 80. After examining the

evidence and the law, Judge Maguire ruled that FMC was not required to obtain a Tribal special

use permit for industrial activities inside an area zoned industrial because:

• Neither the Tribes’ Land Use Policy Guidelines nor any amendments to the Tribes’Hazardous Waste Acts had any provision for a permitting fee of $1.5 million dollars;

• The Tribes’ Constitution, Article VI§ 1(k), requires the Tribes to obtain approval bythe Secretary of the Interior for any ordinance directly affecting non-members, andthe Tribe failed to obtain such approval, therefore the imposition of the $1.5 millionfee is void;

• There was no incorporation of FMC’s so-called "Letters Agreement" into any Tribalordinances;

• The “Letters Agreement” was not a contract between FMC and the Tribes; and

• There is no evidence that FMC agreed to pay a $1.5 million dollar fee for every yearthat waste remained on its property.

SOF 82-86; May 21, 2008 Opinion, 004357; Nov. 13, 2007 Opinion, 004023.

In its decision, the Business Council had argued in July 2006 that it had properly adopted

the 2001 Hazardous Waste Management Act (“HWMA”), which provided the Tribes’ legal basis

for the fee imposed on FMC. July 21, 2006 FHBC Decision, 002787. But FMC argued to the

Tribal Court in March 2008 that this law had not been approved by the Bureau of Indian Affairs

(“BIA”), and was thus not duly adopted. May 6, 2013 Br., 006610, 006624-25. In response to

this, the Tribes privately wrote to the BIA asking whether FMC was correct that the BIA had not

approved the HWMA. Mar. 21, 2008 Tribes Br., 004205, at 004231; Apr. 4, 2008 FMC Br.,

004262, at 004286. The BIA quickly responded on April 11, 2008, telling the Tribes that it had



not approved the HWMA. May 6, 2013 FMC Br., 006610, 006624-25. But rather than

providing this authoritative and dispositive letter to FMC or the Tribal Court, the Tribes kept it to

themselves, while continuing to represent to the Tribal Court that the BIA had given the HWMA

an “unconditional approval.” Apr. 15, 2008 Trans., 004305 at 004326. In spite of this, the

Tribal Court was not fooled, and found based on other evidence that the HWMA had not been

approved by the BIA. May 21, 2008 Op., 4357, 4373.

Subsequent to these decisions, somehow the case was never sent back to the Tribal Court

or Judge Maguire, as will be shown further below. SOF 87.

C. The First Panel of the Tribal Court of Appeals Explicitly Pronounced itsIntention to “Protect the Tribe.”

In May 2008, the Tribes appealed Judge Maguire’s decision to the Tribal Appellate Court

(“Appellate Court”). The case was then before the Appellate Court for six (6) years. The

makeup of the Appellate Court was Fred Gabourie (a member of a tribe) as Chief Judge, and

Mary Pearson (a member of a tribe) and Cathy Silak as Associate Judges. Oct. 28, 2009 Not.,

004410; SOF 92. The case was briefed in 2010, and was under consideration until May and June

2012, when the Appellate Court finally issued its decision against FMC. SOF 93; May 8, 2012

Findings, 006165; June 26, 2012 Am. Findings, 006262.

While the case was still under consideration, two of the members of the panel (Judge

Gabourie and Judge Pearson) made a public presentation at the University of Idaho on March 23,

2012.5 SOF 94. At this videotaped public seminar, Judges Gabourie and Pearson explained that

5 The seminar was entitled “Tribal Courts: Jurisdiction and Best Practices,” and the presentationby Judges Gabourie and Pearson was titled, “The Importance of Tribal Appellate Courts.” Theseminar was organized by the University of Idaho College of Law. SOF 94. On May 18, 2012,FMC made a request for the videotape of the Judges’ public remarks. SOF 105. However, thisrequest was denied. Id. FMC was forced to file an action under the Idaho Public Records Actagainst the University of Idaho seeking the release of the videotape. Id. On January 3, 2013, an



it was important for Tribes to obtain as much jurisdiction and sovereignty for Indian tribes as

possible, and explained how tribal appellate judges should issue decisions to achieve this goal for

tribes. SOF 95. They criticized the principal United States Supreme Court decisions regarding

tribal jurisdiction, stating that Montana “has just been murderous to Indian tribes.” SOF 96.

Chief Judge Gabourie explained how tribal appellate judges should help evade the

Supreme Court precedents, explaining that “you better have a good appellate court decision to

get around that [Montana v. United States, 450 U.S. 544 (1981)].” SOF 97. Judges Gabourie

and Pearson also criticized Nevada v. Hicks, 533 U.S. 353 (2001), and South Dakota v.

Bourland, 508 U.S. 679 (1993); SOF 98. Judge Gabourie said: “I think Judge Ginsburg made a

mistake” in her opinion for the unanimous court in Strate v. A-1 Contractors, 520 U.S. 438

(1997); SOF 98. The judges took the position that the Supreme Court decisions in Bourland and

Strate were “bad decisions.” SOF 98. They stated that the way to avoid “bad decisions” against

tribes was for the tribal appellate courts to advocate the tribe’s position in the decision, so as to

make a better record that would more likely be recognized by the federal courts. SOF 97, 99.

Judges Gabourie’s and Pearson’s presentation made it clear that they were anything but fair and

impartial. Judge Gabourie told the audience that the tribal “appellate courts have got to step in”

and “be sure to protect the tribe.” SOF 99.

Judges Gabourie and Pearson also made specific comments about mining and

manufacturing companies. At that point, the Appellate Court had not heard any evidence

regarding the environmental investigation of the FMC Pocatello Site. But Judges Gabourie and

Pearson made it clear that they had decided they did not need any evidence on these points, as

Judge Gabourie stated that he already knew the water was polluted, even without proof:

Idaho state court issued an Order Compelling Production of Public Document, ordering theUniversity of Idaho to release the videotapes. Id.



You know, there’s one area, too, there are tribes that have had mining and otheroperations going on, on the reservation, you know, and then the mining companyor whatever, manufacturing company, disappears. . . .

And you sit as a – as an appellate court justice, and you’re starting to read thecases that come down from the tribal court. And you’re saying to yourself, youknow, We know that the – there’s pollution, that the food that they’re eating ispolluted, the water’s polluted, but nobody proved it.

SOF 100. Judge Pearson also made it clear that she had made up her mind in the same way,

judging that FMC had dirtied the groundwater and then gone out of business:

[Y]ou know where – companies come on the reservations and do business for Xnumber of years and they dirty up your groundwater and your other things, andthey go out of business. And they leave you just sitting. And you need to knowwhat you can do as you’re sitting as a judge with those cases coming toward you.

SOF 1016 The pre-judgments made by Judges Gabourie and Pearson were wrong. FMC has

never abandoned its Site or its environmental responsibilities. SOF 5-21, 102. Rather, FMC has

diligently performed its obligations under the RCRA7 Consent Decree, and FMC has diligently

pursued the environmental investigations and proposed the most advanced remedial actions

selected by EPA under CERCLA.8 SOF 5-21, 128-136, 142-183. FMC has fully funded such

efforts, including costs for oversight by EPA, the State of Idaho, and the Tribes. FMC also

fulfills EPA requirements for financial assurance for this by reserving the money required to

fund such efforts into the future.

6 This panel expressed these same pre-judgments of facts in its January 2013 Opinion. Jan. 14,2013 Findings, 006464. In particular, the panel repeated Judge Pearson’s opinion that the FMCsite “would have been abandoned and left to the Tribes to clean-up, had the government notstepped in.” Jan. 14, 2013, 006477. There was no evidence for this point at the time, nor is thereevidence for this point in the record of the subsequent trial. Similarly, the panel found that theTribes’ litigation of these issues would protect the health of the tribal members, even thoughthere has never been any evidence that this litigation will protect any health risks in any waywhatsoever. Jan. 14, 2013 Findings, 006480, 006470, 006477.7 The Resource Conservation and Recovery Act.8 The Comprehensive Environmental Response, Compensation and Liability Act.



The decisions of the Appellate Court also show how it selectively applied Idaho law

when that law benefited the Tribes, but ignored Idaho law when it disfavored the Tribes. The

Court ruled that “Tribal Law and Custom do not apply to this case,” and that it would follow

Idaho state law as the rules of decision, and applied those rules in order to award of attorney fees

against FMC. Feb. 5, 2013 Findings, 006510, at 006525 & 006517-19. However, Idaho law

also holds that a contract indefinite as to term is terminable at will by either party upon

reasonable notice. Jul. 15, 2010 FMC Br., 004873, at 004934. Idaho contract law does not

generally allow perpetual contracts that have no ending. Id. 4873, at 4935; Barton v. State, 104

Idaho 338, 340, 659 P.2d 92, 94 (1983). This law would bar any judgment against FMC,

because the contract alleged had no duration term and FMC terminated the contract. SOF 49.

But the Appellate Court ignored that Idaho law, while simultaneously applying Idaho law when

it helped the Tribes. Jun. 14, 2012 Op., 6262 at 6305.

The first panel remanded the matter to the Tribal Court to consider additional evidence

relating to the second Montana exception. SOF 109; June 26, 2012 Dec., 6262 *6323.

However, the Appellate Court later revoked this remand and ordered that the Appellate Court

would hear the evidence relating to the second Montana exception. SOF 111, 115; May 28, 2013

Order, 006626-28.

D. The Decision for the Second Panel of Tribal Appellate Court Had BeenReached Long Before the Trial Was Held.

After the videotapes of their public presentation were released, the judges of the first

panel were replaced by a second panel, with no indication of the process by which they were

appointed. SOF 113. These judges ultimately were Judge Peter McDermott, Judge Vern E.

Herzog and Judge John Traylor. Id. Judge Traylor was a former employee of the Tribes.

SOF 113. In spite of the evidence of the partiality of the first panel, the second panel did not



reconsider the first panel’s decision. The new panel kept the Decision in full force and effect.

SOF 114.

The Appellate Court’s decision to hear evidence on the second Montana exception was

an abrupt change in procedure at the end of the proceeding, and violated due process. First, the

matter was a review of the LUPC’s administrative action. The review should have been limited

to the LUPC record. Holding a new evidentiary hearing ignored that this was a review of

LUPC’s action. Second, the Appellate Court had already determined jurisdiction over FMC

under the first Montana exception. After having found jurisdiction on one basis, a proceeding on

the second exception was unnecessary, unless the Court had already pre-determined to find

jurisdiction on a separate basis. Third, the majority of the first panel had already stated that they

believed FMC had polluted the groundwater and the food of the Tribes, and had put these

conclusions into their Order, before hearing any facts on the issue. SOF 112; Jan. 14, 2013

Findings, 6464, 6477, 6480, 6470. Fourth, making this initial determination in the final court of

appeal, denied FMC any “access to appeal or review,” which is an element of due process

required in Wilson v. Marchington. Wilson, 127 F.3d at 811; see RESTATEMENT (THIRD) OF THE

FOREIGN RELATIONS LAW OF THE UNITED STATES (“Restatement”) § 482 cmt. b (1987); see

Burrell, 456 F.3d at 1159, 1173 (“[W]e are troubled by the lack of a tribal appellate court to

review the second tribal judge’s decision.”).

The second panel also decided to ignore that the Tribes had withheld key evidence

supporting the Tribal Court decision. On appeal, the Tribes argued to the Tribal Court of

Appeals that the BIA had approved the HWMA. Apr. 15, 2010 Tribes Br., 004469, at 004547-

48; Tribes’ Findings, 006065 at 006093-94. In May 2012, the Tribal Court of Appeals issued an

opinion agreeing with the Tribes on this point, without the benefit of the evidence the Tribes



possessed. Compare Feb. 10, 2012 Findings, 006065 at 006093-94, to May 8, 2012 Op.,

006165, at 006194-95. As explained above, four years earlier, while the case was before the

Tribal Court, the Tribes had received the BIA’s analysis that it had not approved the ordinance

that is the basis for the Tribes’ permit, as required by the Tribes’ Constitution. May 6, 2013

FMC Br., 006624. The Tribes had kept this letter to themselves for four years. Jun. 22, 2012

FMC Br. 006253, 006255. When FMC finally obtained this evidence, FMC presented it to the

Appellate Court, explaining that the Tribes had kept this key evidence showing that the legal

basis for the permit fee did not exist. June 22, 2012 FMC Br., 006253, at 006255-56; May 6,

2013 Br., 006610 at 006614. But instead of ruling that this evidence supported the Tribal Court

opinion that there was no statutory basis for the fee, the Appellate Court blamed FMC, rather

than the Tribes, for not “timely” providing the document that had been withheld by the Tribes.

May 28, 2013 Order, 006626, at 006627.

E. Conclusion: No Due Process Will Be Provided In a System Is Not Designed toRequire Due Process.

The Tribes seek to convince the Court that due process was provided by a system that had

no real incentives to provide due process. That will not work, and did not work. Instead, the law

was unknowable, allowing the Tribes to say a law was enacted when it had not been. See Duro,

495 U.S. at 384-385 (Souter, J., concurring). When the Tribes kept key evidence that the law

had not been enacted, the Tribal courts blamed FMC for delay in providing the document that the

Tribes had concealed. The Tribal courts applied state law when it favored the Tribes, and

ignored state law when it undermined the Tribes’ entire claim. The Tribal courts abruptly

changed procedure in order to prejudice FMC. These were not courts, but advocacy panels

designed to support the Tribes, funded from the same funds as the Tribes’ counsel.



IV. THE DISTRICT COURT ERRONEOUSLY BARRED DISCOVERYREGARDING WHETHER THE TRIBAL COURT SYSTEM PROVIDED DUEPROCESS TO A NONMEMBER OPPOSING THE TRIBAL GOVERNMENT.

When a party brings a foreign judgment to a forum court (the District Court) to be

enforced in the forum’s jurisdiction, the forum court must consider whether the foreign court (the

Tribal Appellate Court) had jurisdiction, and whether the foreign court provided due process to

the defendant. Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997). Due process issues are not

required to be presented to the foreign court, which would presumably always find that its

process was fair and that its judgments should be enforced elsewhere. Bank Melli Iran v.

Pahlavi, 58 F.3d 1406 (9th Cir. 1995). Moreover, questions of due process are always reviewed

de novo by the forum court. See Section I above.

FMC sought to conduct discovery in relation to the due process questions found in

Section IV.C. of its Amended Complaint. Jan. 19, 2015 Am. Cplt., Doc. 10; Mar. 20, 2015 FMC

Lit. Plan, Doc. 30; Apr. 8, 2015 FMC Br., Doc. 36. This would have allowed discovery on

questions such as how Judge Maguire was apparently fired by the Tribes, what ex parte

communications there were between the Tribes and Judge Maguire or the other judges, whether

the Tribes withheld payment from Judge Maguire, and how it was that the remand of the second

Montana exception issue (itself improper) was not returned to Judge Maguire and the Tribal

Court. But, in its November 9, 2015 Memorandum Decision and Order, this Court ruled that

FMC was required to litigate the question of the partiality of the Tribal courts to the Tribal courts

themselves, and that FMC’s failure to do so was a waiver of the argument. Nov. 9, 2015 Mem.

Dec., at 4. The Court prevented FMC from seeking any discovery on these issues. This clear

error must be reversed.



A. The District Court Erred by Failing to Apply the Wilson v. MarchingtonPrinciples to this Question.

In Wilson, the Ninth Circuit explained that a tribal judgment must be tested for due

process, just as a foreign country judgment would be:

A federal court must also reject a tribal judgment if the defendant was notafforded due process of law. “It has long been the law of the United States that aforeign judgment cannot be enforced if it was obtained in a manner that did notaccord with the basics of due process.” Bank Melli Iran v. Pahlavi, 58 F.3d 1406,1410 (9th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 519, 133 L. Ed. 2d 427(1995). The guarantees of due process are vital to our system of democracy.We demand that foreign nations afford United States citizens due process of lawbefore recognizing foreign judgments; we must ask no less of Native Americantribes.

127 F.3d at 811. In holding that the forum court must analyze whether due process was provided

by the foreign court, the Ninth Circuit relied on Bank Melli Iran, 58 F.3d 1406. In that case,

several Iranian banks had obtained $32 million in judgments against Shams Pahlavi, the sister of

the former Shah of Iran, from post-revolutionary tribunals in Iran following the overthrow of the

Shah. Shams Pahlavi had not made any appearance before those tribunals. The Iranian banks

asked the federal courts in California to enforce these judgments. After considering evidence

regarding the Iranian tribunals,9 the Ninth Circuit denied enforcement. This ruling was based on

a showing by Shams Pahlavi that she could not “receive a trial in Iran that would be

characterized by a ‘system of jurisprudence likely to secure an impartial administration of

justice.’” 127 F.3d at 1413, citing Hilton v. Guyot, 159 U.S. 113, 202 (1895).

This Court’s holding that FMC was required to litigate the due process issue in the Tribal

courts is the legal equivalent of requiring Shams Pahlavi to argue to the revolutionary Iranian

tribunals that they would not provide her a fair system of justice. The Ninth Circuit imposed no

9 The district court considered reports issued regarding Iranian courts, the declaration of anexpert, and materials obtained from the State Department at the request of the federal districtcourt. 127 F.3d at 1411-1412.



such requirement. The Pahlavi and Marchington requirement that the foreign court provide due

process would be wiped away if the foreign court was allowed to decide whether it provided due

process. There is no authority for the Court’s rule on this point.

B. The Legal Rule Followed by the District Court Has No Precedential Supportin Tribal Law Cases.

This Court barred FMC from conducting discovery on its due process claims found in

Section IV.C. of the First Amended Complaint. This Court recognized that there is no legal

precedent for this novel legal rule. The District Court’s decision relied entirely on the two cases

of Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985), and Iowa Mut.

Ins. Co. v. LaPlante, 480 U.S. 9 (1987). The Supreme Court has explained that these cases relate

only to jurisdiction, and are only a “prudential exhaustion rule,” deferring to tribal courts ‘to

explain to the parties the precise basis for accepting [or rejecting] jurisdiction.’”10 Strate, 520

U.S. at 450, 451 (emphasis added). Even though these cases apply only to exhaustion of

jurisdiction questions, the District Court decided to extend these two cases to due process

questions. Mem. Dec. at 4. The Court offered no authority for this extension.

Also, this Court’s extension of exhaustion to due process issues did not exist as of the

time of these Tribal court proceedings. This Court prejudiced FMC by applying this new rule

retroactively. FMC could not reasonably have foreseen while in the Tribal courts that this Court

would not follow the law established by Wilson and the Ninth and Tenth circuits, but would

forge its own rule requiring that due process claims be argued to the Appellate Court.

10 Both Iowa Mutual and National Farmers are cases in which the defendants had not exhaustedtribal remedies before approaching the federal courts. Neither deals with whether an exhaustedtribal court judgment will be enforced. The Supreme Court has explained: “National Farmersand Iowa Mutual . . . are not at odds with, and do not displace, Montana. Both decisionsdescribe an exhaustion rule allowing tribal courts initially to respond to an invocation of theirjurisdiction; neither establishes tribal-court adjudicatory authority, even over the lawsuitsinvolved in those cases.” Strate, 520 U.S. at 448 (emphasis added).



C. The District Court’s Rule Violates Ninth and Tenth Circuit Precedent.

Besides being a novel ex post facto rule, the District Court’s decision contradicts Ninth

and Tenth Circuit authority on this point. The Tenth Circuit squarely addressed and flatly

rejected the rule that the District Court adopted. In Burrell v. Armijo, 456 F.3d 1159 (10th Cir.

2006), the tribal court had entered judgment in favor of its tribal government, against an outsider

who had been required to find justice in the tribal courts for a dispute between the outsider and

the tribal government. Burrell, 456 F.3d at 1172. The Tenth Circuit held that the tribal court

judgment was not entitled to recognition. Id. The District Court for the District of New Mexico

made exactly the same mistake as the Court made here, relying on the same authority:

The district court, however, ruled that a federal court’s authority to re-adjudicateissues resolved in tribal court because of a due process failure was contrary to theSupreme Court’s decisions in Iowa Mutual and National Farmers.

456 F.3d at 1171. The Tenth Circuit ruled that this extension was error:

We disagree with the district court’s conclusion that the Burrells could notchallenge the tribal court’s judgment based on due process considerations. TheSupreme Court’s decisions in Iowa Mutual and National Farmers do notaddress due process; rather, they hold that principles of comity require a federalcourt to give a tribal court the first opportunity to determine its own jurisdiction,subject to later review by a federal court. . . .

456 F.3d at 1171 (emphasis added). This Court’s rule would split with the Tenth Circuit.

The Ninth Circuit has also rejected the District Court’s proposed new rule. The Tenth

Circuit rule is based on AT&T Corp. v. Coeur d’Alene Tribe, 295 F.3d 899 (9th Cir. 2002),

which explained that comity was an exception to any restriction to the tribal court record:

Unless the district court finds the tribal court lacked jurisdiction or withholdscomity for some other valid reason, it must enforce the tribal court judgmentwithout reconsidering issues decided by the tribal court.

. . . [T]he rule that federal courts may not re-adjudicate questions – whether offederal, state or tribal law – already resolved in tribal court absent a finding thatthe tribal court lacked jurisdiction or that its judgment be denied comity forsome other valid reason.



295 F.3d at 903-04 (emphasis added). Comity questions are an exception to any rule against re-

adjudicating questions decided at the tribal court.

In Bird, the Ninth Circuit refused to enforce a tribal court judgment that was based on an

improper closing argument. Using a de novo standard of review, the Ninth Circuit did not

consider the opinions of the Blackfeet tribal courts, and refused enforcement, even though “[t]he

Co-op did not object to this” improper argument. Bird, 255 F.3d at 1140. The closing argument

so offended fundamental fairness that the Constitution’s guarantee of due process11 was violated,

even though the defendant had not raised the issue at the trial court. Bird, 255 F.3d at 1152. To

come to this conclusion, the Ninth Circuit explained that it considered due process violations de

novo:

However, we review de novo claims of due process violations. See Hilao v.Estate of Marcos, 103 F.3d 767, 780 (9th Cir. 1996). If the tribal court violateddue process, then the district court here had no discretion to recognize the tribalcourt judgment. See Wilson v. Marchington, 127 F.3d 805, 810 (9th Cir. 1997).Further, de novo review is required when reviewing a district court's summaryjudgment. . . . For these reasons, we review de novo whether the alleged dueprocess violations precluded the district court's grant of comity here to the tribalcourt judgment.

Bird, 255 F.3d at 1140-41 (emphasis added). Bird undermines this Court’s rule. If exhaustion

required Glacier Electric to “give the tribal court an opportunity to cure the problem,” the Ninth

Circuit would have ruled otherwise, because Glacier Electric did nothing to preserve its

objection. Under AT&T and Burrell and Bird, comity factors are addressed de novo by the

11 It also violates the United States Constitution to assign the consideration of due process issuesto the originating court. Even in those cases where Congress has been allowed to vestadjudicatory rights to non-Article III tribunals, Congress has not been allowed to deprive theArticle III courts of jurisdiction over the factual determinations related to constitutional rights.Crowell v. Benson, 285 U.S. 22, 52 S. Ct. 285 (1932); Ng Fung Ho v. White, 259 U.S. 276, 285,42 S.Ct. 492, 495 (1922). In Crowell, the Supreme Court stated: “We think that the essentialindependence of the exercise of the judicial power of the United States, in the enforcement ofconstitutional rights requires that the federal court should determine such an issue upon itsown record and the facts elicited before it.” Id. (emphasis added).



federal court as part of a comity analysis, after the tribal court judgment is issued. The rule that

due process issues must be addressed in tribal court is clear error.12

V. THE JUDGMENT SHOULD NOT BE ENFORCED BASED ON THEDISCRETIONARY FACTORS PROVIDED IN WILSON V. MARCHINGTON.

A federal court may decline to recognize and enforce a tribal court judgment on equitable

grounds, including if the judgment conflicts with another final judgment that is entitled to

recognition. Wilson, 127 F.3d at 810. A federal court may also decline to enforce a tribal court

judgment if recognition of the judgment is contrary to the public policy of the United States.

Wilson, 127 F.3d at 810. The Court should exercise this discretion in this case, because this

Judgment is another effort to overturn the policy judgments of the EPA.

The Tribes have long sought to hijack the role of EPA as the decision-maker for the FMC

Site, because the Tribes seek their remedy of removal of the wastes rather than the EPA’s

remedy of storing the wastes in place. SOF 11, 190-195. The Tribes challenged the RCRA

storage decision by the EPA, and that challenge failed both before this Court and the Ninth

Circuit. United States v. FMC Corp., 229 F.3d 1161 (9th Cir. 2000) (unpublished opinion); July

13, 1999 Order, 716; SOF 9-14. This Court held that the RCRA Consent Decree that directs the

storage of the wastes in place “is fair, reasonable, in the public interest, and fulfills the United

States’ trust responsibilities to” the Tribes. SOF 12; Jul. 13, 1999 Order, 716. This Court wrote

12 This Court’s ruling is also contrary to the applicable standard of review. The question ofwhether due process was provided in another court is always a question decided de novo. Withde novo review, the reviewing court must consider as if there had previously been no decisionrendered. Ninth Circuit Standards of Review. This means that the question of whether dueprocess was provided should be independent of whether the reviewed court believed it provideddue process. Here, the Court required exhaustion so that the Tribal court could “provide itsexpertise for review by the federal district court.” Nov. 10, 2015 Mem. Dec., Doc. 43, at 4. Thiscontradicts a de novo standard of review where “no form of appellate deference is acceptable.”Ninth Circuit Standards, quoting Rabkin v. Oregon Health Sciences Univ., 350 F.3d 967, 971(9th Cir. 2003).



that the United States’ trust responsibilities “do not allow the Tribes to prescribe the

environmental-remediation measures the United States should pursue.” SOF 12; Jul. 13, 1999

Order, 000717. The Court also ruled that it was “convinced that the capping requirements are

adequately environmentally protective” and that there was no basis to conclude “that capping

allows an unreasonable health risk to go unchecked.” SOF 12; Jul. 13, 1999 Order, 000717-18.

The Tribes tried again to supplant the EPA when they sought to enforce the RCRA Consent

Decree as a party, but that attempt was also rejected by the Ninth Circuit. United States v. FMC

Corp., 531 F.3d 813 (9th Cir. 2008). The Tribes cannot now attack the same in-place storage

under RCRA that was already approved by the EPA and this Court and the Ninth Circuit.13 For

these reasons, the assertion of jurisdiction over the FMC Site by the Tribes would violate the

public policy of the United States, and be contrary to the judgments issued by the EPA.

VI. THE PENAL JUDGMENT RULE BARS ENFORCEMENT OF THE TRIBALCOURT JUDGMENT.

The extraterritorial enforcement of this type of penal judgment has long been prohibited

under the penal law rule. The penal law rule refuses to enforce judgments that award funds to a

local government issued by the local courts in favor of that local government. No jurisdiction

has the power to have its penal judgments enforced outside of its own jurisdiction.

A. The Penal Law Rule Bars the Enforcement of Judgments for the Collectionof Fines or Penalties.

As part of comity doctrine, courts in the United States do not recognize or enforce

judgments for the collection of fines or penalties rendered by the courts of other states.

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES

13 While the Tribes’ special use permit requires only the payment of money, it is reasonable tobelieve that the Tribes would seek to impose environmental requirements on FMC if they wereawarded jurisdiction.



(“Restatement”) § 483 (1987); Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme,

433 F.3d 1199, 1219-20 (9th Cir. 2006); Nelson v. George, 399 U.S. 224, 229 (1970). This is

true even when the full faith and credit clause requires one state to recognize the judgments of

another state. City of Oakland v. Desert Outdoor Advertising, Inc., 267 P.3d 48, 50-51 (Nev.

2011).

The penal law rule was first established by the United States Supreme Court in the case

of The Antelope, 23 U.S. (10 Wheat.) 66, 6 L.Ed. 268 (1825), when Chief Justice John Marshall

explained that “[t]he Courts of no country execute the penal laws of another.” Antelope, 23 U.S.

at 123; see United States v. Federative Republic of Brazil, 748 F.3d 86, 91 (2d Cir. 2014). Chief

Justice Marshall explained that no country “can rightfully impose a rule on another. Each

legislates for itself, but its legislation can operate on itself alone.” Antelope, 23 U.S. at 122.

The Supreme Court has repeatedly confirmed this rule over the last two centuries. In

Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 290 (1888), overruled in part on other grounds by

Milwaukee Cnty. v. M.E. White Co., 296 U.S. 268, 278 (1935), the Supreme Court stated:

By the law of England and of the United States, the penal laws of a country donot reach beyond its own territory, except when extended by express treaty orstatute to offences committed abroad by its own citizens; and they must beadministered in its own courts only, and cannot be enforced by the courts ofanother country.

127 U.S. at 289-290 (emphasis added); see Huntington v. Attrill, 146 U.S. 657, 666 (1892);

Oklahoma ex rel. West v. Gulf, Colo. & Santa Fe Ry. Co., 220 U.S. 290, 299-300 (1911); Banco

Nacional de Cuba v. Sabbatino, 376 U.S. 398, 413-414 (1964); Pasquantino v. United States,

544 U.S. 349, 360-61 (2005); see United States v. Federative Republic of Brazil, 748 F.3d 86, 91

(2d Cir. 2014).



The Ninth Circuit also follows this principle, based on Section 483 of the Restatement.

Restatement § 483. In Yahoo! v. La Ligue Contre Le Racisme, 433 F.3d 1199 (9th Cir. 2006),

the Ninth Circuit wrote that a French judgment would likely not be enforced because “the

common law rule against the enforcement of penal judgments is venerable and widely-

recognized.” 433 F.3d at 1219, citing Huntington v. Attrill, 146 U.S. 657, 673-74 (1892).

This well-established comity principle applies to the Judgment of the Appellate Court,

because “the recognition and enforcement of tribal judgments in federal court must inevitably

rest on the principles of comity.” Wilson, 127 F.3d at 809. While Wilson relied on Section 482

of the Restatement (Third) of Foreign Relations Law of the United States for its analysis, the

Ninth Circuit relied on its companion section, Section 483, in Yahoo!, 433 F.3d at 1219. Section

483 provides as follows:

Courts in the United States are not required to recognize or to enforce judgmentsfor the collection of taxes, fines, or penalties rendered by the courts of otherstates.

Restatement § 483. The Ninth Circuit explained:

This is consistent with the Restatement's declaration that “[c]ourts in the UnitedStates are not required . . . to enforce judgments [from foreign countries] for thecollection of . . . fines or other penalties.” Restatement § 483; see also 30Am.Jur.2d Execution and Enforcement of Judgments § 846 (2004) (“Courts in theUnited States will not recognize or enforce a penal judgment rendered in anothernation.”).

Yahoo!, Inc., 433 F.3d at 1219. The Ninth Circuit has adopted both Section 482 and 483 of the

Restatement, and both must be followed here. Wilson, 127 F.3d at 809; Yahoo!, Inc., 433 F.3d at

1219.



B. The Judgment in this Case is a Penal Judgment that Cannot Be EnforcedUnder the Penal Law Rule.

Enforcement of this Judgment outside of the Fort Hall Reservation is prohibited because

it awards funds to the Tribal public, rather than to individuals. A penal law is one where the

wrong sought to be redressed is a wrong to the public, rather than to an individual. The Ninth

Circuit rule is that a penal law is a law that punishes an offense against the state, rather than

providing a private remedy to a person injured, explaining that the determination

is not by what name the statute [on which the judgment is based] is called by thelegislature or the courts of the State in which it was passed, but whether it appearsto the tribunal which is called upon to enforce it to be, in its essential characterand effect, a punishment of an offense against the public, or a grant of a civilright to a private person.

Yahoo!, Inc., 433 F.3d at 1219 (emphasis added); see also Banco Nacional, 376 U.S. at 413 n. 15

(“one which seeks to redress a public rather than a private wrong”). The Supreme Court has

written that the penal law rule applies “to all suits in favor of the State for the recovery of

pecuniary penalties for any violation of statutes for the protection of its revenue, or other

municipal laws, and to all judgments for such penalties.” Wisconsin, 127 U.S. at 290 (emphasis

added). The Supreme Court explained further that a penal judgment is one where “The cause of

action was not any private injury, but solely the offence committed against the State by violating

her law” and where “[t]he prosecution was in the name of the State, and the whole penalty, when

recovered, would accrue to the State.” Wisconsin, 127 U.S. at 299.

Based on these rules, the Judgment in this case is based on a penal law, or a law which

punishes an offense against the public or the Tribes as a whole. The Judgment is issued in favor

of the Tribes’ government rather than to any individual. The Judgment is based on the Tribes’

enforcement of planning, zoning and hazardous waste ordinances. May 16, 2014 Op., 8538-

8539. The Judgment amount is the amount of a “special use permit fee for FMC’s storage of



hazardous waste on the reservation pursuant to the LUPO.” May 16, 2014 Op., 8539. In these

circumstances, the penal judgment rule bars enforcement14 of this type of penal judgment,

because it was issued by a tribal court in favor of the governing body that appointed it.15

C. The Penal Judgment Rule Has Been Adopted in the Uniform Law.

The penal judgment rule is codified in the uniform law of most states.16 This revised

Uniform Law was adopted by Idaho in 2007. The Idaho version of this Uniform Law provides:

(b) This [act] does not apply to a foreign-country judgment, even if the judgmentgrants or denies recovery of a sum of money, to the extent that the judgment is:. . . (2) a fine or other penalty . . . .

IDAHO CODE § 10-1403(2) (2016); UNIFORM LAW § 3 (emphasis added). This law is based on

the principle that: “Foreign-country judgments for taxes and judgments that constitute fines or

penalties traditionally have not been recognized and enforced in U.S. courts.” UNIFORM LAW,

§ 3, Cmt. 4. The National Conference also explained that “Courts generally hold that the test for

whether a judgment is a fine or penalty is determined by whether its purpose is remedial in

14 The penal law rule is consistent with the law of tribal jurisdiction established by the UnitedStates Supreme Court. The penal law rule would leave tribal courts ample authority to governtribal members, while restricting the tribal courts ability to govern non-tribal members. TheSupreme Court has explained that “tribes do not, as a general matter, possess authority over non-Indians who come within their borders . . . .” Plains Commerce, 554 U.S. at 327, 328; Oliphantv. Suquamish Tribe, 435 U.S. 191, 209 (1978).15 The penal law rule is also consistent with the rule prohibiting criminal jurisdiction over non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) ; Duro v. Reina, 495 U.S.676, 693 (1990) (“Criminal trial and punishment is so serious an intrusion on personal libertythat its exercise over non-Indian citizens was a power necessarily surrendered by the tribes intheir submission to the overriding sovereignty of the United States.”).16 National Conference of Commissioners on Uniform State Laws, Uniform Foreign-CountryMoney Judgments Recognition Act (July 21, 2005) (“Uniform Law”). The 2005 UniformForeign Country Money Judgments Recognition Act revised the 1962 act of the same name.These acts codify the most prevalent common law rules with respect to the recognition of moneyjudgments rendered in other countries. Uniform Law, at 1. The 1965 version of the UniformForeign Money Judgments Recognition Act was also adopted by Idaho and followed essentiallythe same penal law prohibition against enforcing “a judgment for taxes, a fine or other penalty.”IDAHO CODE § 10-1401(1) (2006).



nature, with its benefits accruing to private individuals, or it is penal in nature, punishing an

offense against public justice.” UNIFORM LAW at 7.

D. The Penal Law Rule Also Prohibits Enforcement of Judgments Protected bythe Full Faith and Credit Clause.

In Wilson, the Ninth Circuit determined that “[f]ull faith and credit is not extended to

tribal judgments.” 127 F.3d at 809. But even if tribal judgments were given full faith and credit,

those judgments would still be prohibited by the penal law rule. Huntington, 146 U.S. at 657,

666, 667, 673-74; see U.S. CONST. art. IV § 1. In Nelson v. George, 399 U.S. 224 (1970), the

Supreme Court recognized that the Full Faith and Credit Clause does not require that sister states

enforce a foreign penal judgment: 17

Since the Full Faith and Credit Clause does not require that sister Statesenforce a foreign penal judgment, Huntington v. Attrill, 146 U.S. 657 (1892); cf.Milwaukee County v. M. E. White Co., 296 U.S. 268, 279 (1935), California isfree to consider what effect, if any, it will give to the North Carolina detainer interms of George's present “custody.”

Nelson, 399 U.S. at 229 (emphasis added). In the case of City of Oakland v. Desert Outdoor

Advertising, Inc., 127 Nev. 533, 267 P.3d 48 (Nev. 2011), the Nevada Supreme Court

determined that Nevada was not required to enforce a California civil judgment against a sign

company for violation of a section Oakland’s municipal sign code. The Nevada Supreme Court

stated that “the United States Supreme Court has determined that the Full Faith and Credit

Clause does not apply to penal judgments.” City of Oakland, 267 P.3d at 51. Other states follow

the same rule. Philadelphia v. Austin, 429 A.2d 568, 572 (N.J. 1981); Schaefer v. H. B. Green

Transp. Line, 232 F.2d 415, 418 (7th Cir. 1956); People v. Laino, 32 Cal. 4th 878, 888, 87 P.3d

27 (Cal. 2004); Farmers & Merchants Trust Co. v. Madeira, 261 Cal. App. 2d 503, 508, 68 Cal.

17 A similar rule, the rule against recognition of tax judgments of sister states, has beenoverturned and is no longer in force. Milwaukee Cnty. v. M.E. White Co., 296 U.S. 268 (1935);Restatement (Third) Foreign Relations Law, § 483 Note 1.



Rptr. 184, 188 (Ct. App. 1968); S.H. v. Adm'r of Golden Valley Health Ctr., 386 N.W.2d 805,

807 (Minn. Ct. App. 1986); MGM Desert Inn, Inc. v. Holz, 411 S.E.2d 399, 402 (N.C. Ct. App.

1991); Russo v. Dear, 105 S.W.3d 43, 46 (Tex. App. 2003).

VII. ARTICLE III OF THE UNITED STATES CONSTITUTION BARSENFORCEMENT OF THE TRIBAL COURT JUDGMENT AGAINST FMC.

The Judgment by the Appellate Court is fundamentally contrary to the U.S. Constitution.

The Judgment asserts that power has been granted to one group of U.S. citizens to create a

government and establish courts, and then use those courts to award sums against other U.S.

citizens who are excluded from any participation in that government. This violates Article III of

the Constitution, as pointed out in a question by Justice Sotomayor:

Mr. Kneedler, some of my colleagues have been expressing a question that I amsure you haven’t answered, which is how can, or how does the Constitution,particularly Article III, which gives every citizen the right to have their claimsadjudicated before an Article III Court, how does Congress have the power tolet – to place adjudicatory powers over a nonmember, non-Tribe member in atribal court?

Dollar Gen. Corp. v. Miss. Band of Choctaw Indians, Oral Argument Transcript, 2015 WL

9919326, at 54-55 (Dec. 7, 2015); see Transcript at 35 (Justice Kennedy “I don’t know what

authority Congress has to subject citizens of the United States to that nonconstitutional forum.”).

The answer to this question is clear: neither Congress nor the courts have the authority to

abrogate a citizen’s right to Article III protection. In Stern v. Marshall, 564 U.S. 462 (2011), the

Supreme Court explained that “Article III could neither serve its purpose in the system of checks

and balances nor preserve the integrity of judicial decision making if the other branches of the

Federal Government could confer the Government's ‘judicial Power’ on entities outside Article

III.” Id. at 484.



Section 1 of Article III of the United States Constitution provides that “The judicial

Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as

the Congress may from time to time ordain and establish.” U.S. CONST. art. III, § 1. The

Judgment violates this prohibition, because the tribal courts were not “ordained and established”

by Congress, and they are outside the direct authority of the Supreme Court. Section 2 of Article

III provides that the federal judicial power extends to “all Cases, in Law and Equity, arising

under this Constitution, the Laws of the United States, and Treaties made . . . under their

Authority,” and that the Supreme Court “shall have appellate Jurisdiction, both as to Law and

Fact” over such cases. U.S. CONST. art. III § 2.

Article III contains two critical functions: First, it “protect[s] the role of the independent

judiciary within the constitutional scheme of tripartite government,” and second, it “assure[s]

impartial adjudication in federal courts.” Thomas v. Union Carbide Agr. Prods. Co., 473 U.S.

568, 582-83 (1985). “Article III protects liberty not only through its role in implementing the

separation of powers, but also by specifying the defining characteristics of Article III judges.”

Stern, 564 U.S. at 483-84. This reflects the colonial experience, wherein “the King of Great

Britain ‘made Judges dependent on his Will alone, for the tenure of their offices, and the amount

and payment of their salaries.’” Id., quoting Decl. Ind. ¶ 11.

Although the tribes are allowed aspects of sovereignty as to the internal relations among

their members, they are still subject to the overarching sovereignty of the United States and the

Constitution. United States v. Wheeler, 435 U.S. 313, 326 (1978) (“implicit divestiture of

sovereignty” over the “relations between an Indian tribe and nonmembers.”). The Supremacy

Clause provides that the Constitution and federal law shall be the supreme law of the land:

This Constitution, and the Laws of the United States which shall be made inPursuance thereof; and all Treaties made, or which shall be made, under the



Authority of the United States, shall be the supreme Law of the Land; and theJudges in every State shall be bound thereby, any Thing in the Constitution orLaws of any State to the Contrary notwithstanding.

U.S. CONST. art. VI (emphasis added).

Article III does not permit the federal courts to authorize non-Article III courts and vest

them with power over citizens of the United States. Under Article III, a claim that existed at

common law or equity, or under the treaties of the United States, must be tried by an Article III

court. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284 (1856); Stern,

564 U.S. 482; N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).

The Supreme Court has allowed some tribunals outside of Article III, but only if a right at

issue is expressly created by Congress and there are adequate due process guarantees. Murray’s

Lessee, 18 How. at 284 (1856); Thomas, 473 U.S. at 588; see N. Pipeline Constr., 458 U.S. at

67-68; Thomas, 473 U.S. at 594; Crowell, 285 U.S. 22. Even where Congress has been allowed

to assign adjudication to non-Article III agencies, it cannot deprive the Article III courts of

jurisdiction over factual determinations related to constitutional rights. Crowell, 285 U.S. at 64.

In determining whether the delegation outside of Article III is constitutional, courts consider key

factors such as “the extent to which the ‘essential attributes of judicial power’ are reserved to

Article III courts, and, conversely, the extent to which the non-Article III forum exercises the

range of jurisdiction and powers normally vested only in Article III courts, the origins and

importance of the right to be adjudicated, and the concerns that drove Congress to depart from

the requirements of Article III.” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833,

852 (1986); see Thomas, 473 U.S. at 589-90, 592, 601; Crowell, 285 U.S. 22, 49–50. Under



these rules, giving authority to bankruptcy courts to adjudicate common law claims violated

Article III, even if the decision was appealable to the district court. Stern, 564 U.S. at 492.18

There is no provision in the Constitution or in Congressional statutes giving tribal courts

authority over non-Indians. Article III would prohibit Congress from making such a broad grant

of judicial authority outside of Article III, even if it tried to do so. See Schor, 478 U.S. at 852.

Even the adjudication of common law claims directly related to a bankruptcy petition is

impermissible, despite the Constitutional grant of power to make bankruptcy law and the

availability of direct appeal to an Article III court. N. Pipeline, 458 U.S. at 85, Granfinanceria

S.A. v. Nordberg, 492 U.S. 33, 54-56, 109 S. Ct. 2782 (1989) (fraudulent conveyance claim),

Stern, 564 U.S. at 492, 131 S. Ct. at 2614 (defamation counterclaim). The Constitution makes

no provision for a parallel system of tribal courts. Neither Congress nor the judiciary can amend

the Constitution to allow such a parallel system.

Even if the court-made doctrines authorizing tribal courts were Congressional acts, those

acts would be barred by Article III. First, Tribal courts are not established for purposes of

impartial adjudication, but rather to further the interests of the Tribe. Second, the Tribal

Appellate Court was not isolated from political and legislative pressure. SOF 70-73, 78; see

Schor, 478 U.S. 848 (Article III “was designed as a protection for the parties from the risk of

legislative or executive pressure on judicial decision.”); see Stern, 564 U.S. at 514-15

(disallowing authority in bankruptcy court, even though bankruptcy judges are only removable

for cause). Third, the merits of the Appellate Court’s Judgment is not subject to review of either

law or fact by the federal courts. See Crowell, 285 U.S. at 49-50; Thomas, 473 U.S. 568.

18 As with a bankruptcy court, the fact that the issue of Tribes’ jurisdiction will ultimately bedecided by Article III court does not cure the violation because the merits of the Tribal AppellateCourt’s decision are not reviewable by an Article III court.



Finally, giving adjudicatory authority over nonmembers to tribal courts is not necessary,

and there is no reason to depart “from the requirements of Article III.” See Schor, 478 U.S. at

852. As in Montana, the “exercise of tribal power beyond what is necessary to protect tribal

self-government or to control internal relations is inconsistent with the dependent status of the

tribes, and so cannot survive without express congressional delegation.” Montana v. United

States, 450 U.S. 544, 564 (1981). Enforcement of tribal law can be sought in other forums,

either state or federal, without any loss of the power of self-governance. Bringing an action

against nonmembers in either state or federal court would be more efficient, avoiding the

necessity of bringing a second action to enforce a tribal court judgment. The jurisdiction of the

tribal courts over nonmembers is unnecessary and inconsistent with both Montana and Article

III. As such, the Judgment must be denied recognition.

VIII. CONCLUSION

The due process owed to U.S. citizens was not given to FMC by the Appellate Court. In

addition, the Judgment issued by the Appellate Court is contrary to the penal law rule and

violates Article III of the U.S. Constitution. This Court must refuse to recognize the Judgment.

DATED this 13th day of January, 2017.

SUMMIT LAW GROUP PLLC

By /s/Ralph H. PalumboRalph H. Palumbo – Of the FirmAttorneys for FMC Corporation

MOFFATT, THOMAS, BARRETT, ROCK &FIELDS, CHARTERED

By /s/Lee RadfordLee Radford – Of the FirmAttorneys for FMC Corporation



CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 13th day of January, 2017, I filed the foregoingMEMORANDUM OF FMC CORPORATION IN SUPPORT OF MOTION TO DENYENFORCEMENT FOR FAILURE OF DUE PROCESS electronically through the CM/ECFsystem, which caused the following parties or counsel to be served by electronic means, as morefully reflected on the Notice of Electronic Filing:

David M. [email protected]

Douglas B. L. [email protected]

Frank S. [email protected]

Maureen L. [email protected]

Paul C. Echo [email protected]

Ralph H. [email protected]

William F. [email protected]

/s/Lee RadfordLee Radford


MEMORANDUM OF FMC CORPORATION IN … OF FMC CORPORATION IN SUPPORT OF MOTION TO DENY ENFORCEMENT FOR FAILURE OF DUE PROCESS Client:4335123.1 Ralph H. Palumbo, WSB No. 04751 David M.

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